Excerpt: - - 2. we agree with the deputy collector that the payment of the whole rent to karuppan chetty was not made in good faith and that the payment was made to defeat the plaintiff's claim to his half share of the rent......in the plaintiff's name.2. we agree with the deputy collector that the payment of the whole rent to karuppan chetty was not made in good faith and that the payment was made to defeat the plaintiff's claim to his half share of the rent. in such a case the plaintiffs right to recover his share cannot be affected. (see zia-ud-din v. muhainad minar i.l.r. 33 a. 308).3. as regards the other question, if karuppan chetty is legally entitled to one half share in the rent, we do not see how the nonmention of his name in the title deed could prevent the tenant (if the latter chooses) to pay half of the rent to karuppan chetty, or what the fact, that the tenant was not bound to pay any portion of the rent unless both the plaintiff and karuppan chetty institute a suit to recover, has to do.....

Judgment:

1. We must accept the finding of the District Judge that Karuppan Chetti was a joint landholder with the plaintiff in the plaint lands. We are not concerned with the plaintiffs' right to sue for the whole rent (including Karuppan Chetti's share) in case no portion of the rent had been paid up but with quite a different question whether plaintiff can sue for the whole or even his half share of the rent if the tenants had paid up the whole rent to the plaintiff's co-sharer as is found in this case. The decision of that point depends on the answer to two questions (a) whether the payment of the whole rent to the plaintiff's co-sharer was bona fide (See Sheik. Ibrahim Tharagan v. Rama Aiyar : (1911)21MLJ508 and (b) whether a tenant is or is not entitled to pay to a co-sharer of the landlord's rights the latter's share of the rent simply because the said co-sharer's name does not appear in the title deeds under which the transfer of the melwaram right was effected in the plaintiff's name.

2. We agree with the Deputy Collector that the payment of the whole rent to Karuppan Chetty was not made in good faith and that the payment was made to defeat the plaintiff's claim to his half share of the rent. In such a case the plaintiffs right to recover his share cannot be affected. (See Zia-ud-din v. Muhainad Minar I.L.R. 33 A. 308).

3. As regards the other question, if Karuppan Chetty is legally entitled to one half share in the rent, we do not see how the nonmention of his name in the title deed could prevent the tenant (if the latter chooses) to pay half of the rent to Karuppan Chetty, or what the fact, that the tenant was not bound to pay any portion of the rent unless both the plaintiff and Karuppan Chetty institute a suit to recover, has to do with the tenant's right to pay the half share to Karuppan Chetty. The defendants having paid to Karuppan Chetty his share of the rent, there is no object in making Karuppan Chetty a party to this suit if the decree is to be passed only for the plaintiff's share of the rent. The defendants' plea of non-joinder has really no force unless 'the rights and interests of the parties actually before' the court (see the words of Order 1, Rule 9 of the Code of Civil Procedure) cannot be decided without the joinder of Karuppan Chetty.

4. In the result the appeal of the plaintiff (who has obtained a decree for his half share of the rent) and who appeals in respect of the other half and the memorandum of objections of the defendant in S.A. No. 941 of 1914 denying the plaintiff's right to a half share of the rent decreed to the plaintiff are both dismissed with costs. Second Appeals Nos. 938 to 949 and 951 to 957 of 1912 and the memorandum of objections in S.A. No. 954 of 1914 being withdrawn are dismissed with costs.